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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

v.

KEVIN TOSH,

Defendant.

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Criminal No. WI 06 153 PHX NVW

Filed: 07/20/06

Violation: 18 U.S.C. § 1001

PLEA AGREEMENT

The United States of America and Kevin Tosh ("defendant") hereby enter
into the following Plea Agreement pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure ("Fed. R. Crim. P."):

RIGHTS OF DEFENDANT

The defendant understands his rights:

to be represented by an attorney;

to be charged by Indictment;

to plead not guilty to any criminal charge brought against
him;

to have a trial by jury, at which he would be presumed not
guilty of the charge and the United States would have to prove
every essential element of the charged offense beyond a reasonable
doubt for him to be found guilty;

to confront and cross-examine witnesses against him and to
subpoena witnesses in his defense at trial;

not to be compelled to incriminate himself;

to appeal his conviction, if he is found guilty; and

to appeal the imposition of sentence against him.

AGREEMENT TO PLEAD GUILTYAND WAIVE CERTAIN RIGHTS

The defendant knowingly and voluntarily waives the rights set out
in Paragraph 1(b)-(h) above. The defendant also knowingly and voluntarily
waives the right to file any appeal, any collateral attack, or any
other writ or motion, including but not limited to an appeal under
18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2241 or 2255,
that challenges the sentence imposed by the Court if that sentence
is consistent with or below the recommended sentence in Paragraph
8 of this Plea Agreement, regardless of how the sentence is determined
by the Court. This agreement does not affect the rights or obligations
of the United States as set forth in 18 U.S.C. § 3742(b)-(c).
Pursuant to Fed. R. Crim. P. 7(b), the defendant will waive indictment
and plead guilty at arraignment to a one-count Information to be filed
in the United States District Court for the District of Arizona. The
Information will charge the defendant with submitting written bid
documents that contained a materially false, fictitious and/or fraudulent
statement and representation in connection with a construction, renovation
and heating/ventilation/air conditioning contract solicited by a federal
department in the United States in violation of 18 U.S.C. § 1001(a)(2)-(3).

The defendant, pursuant to the terms of this Plea Agreement, will
plead guilty to the criminal charge described in Paragraph 2 above
and will make a factual admission of guilt to the Court in accordance
with Fed. R. Crim. P. 11, as set forth in Paragraph 4 below. The United
States agrees that at the arraignment, it will stipulate to the release
of the defendant on his personal recognizance, pursuant to 18 U.S.C.
§ 3142, pending the sentencing hearing in this case.

FACTUAL BASIS FOR OFFENSE CHARGED

Had this case gone to trial, the United States would have presented
evidence sufficient to prove the following facts relating to the defendant:

On or about July 23, 2001, defendant did knowingly and willfully
make and cause to be made a materially false, fictitious and fraudulent
statement and representation in a matter within the jurisdiction
of the executive branch of the United States by submitting a bid
to the United States Coast Guard Civil Engineering Unit (the"Coast
Guard"), then an agency of the United States Department of Transportation,
for a mechanical rehabilitation project in Portsmouth, Virginia,
in which defendant falsely represented that his employer had performed
a prior fire sprinkler retrofit project, when in truth and fact
it had not.

Acts in furtherance of this offense were carried out within
the District of Arizona, Phoenix Division. The defendant identified
the Coast Guard bid solicitation on which his employer would bid,
prepared bid estimates and caused the bid documents to be prepared
and transmitted from offices in Mesa, Arizona.

POSSIBLE MAXIMUM SENTENCE

The defendant understands that the statutory maximum penalty which
may be imposed against him upon conviction for a violation of Title
18, United States Code, Section 1001(a) is:

a term of imprisonment for five (5) years (18 U.S.C. §
1001);

a fine in an amount equal to the greatest of (1) $250,000,
(2) twice the gross pecuniary gain the conspirators derived from
the crime, or (3) twice the gross pecuniary loss caused to the
victims of the crime by the conspirators (18 U.S.C. § 3571(b)
and (d)); and

a term of supervised release of three (3) years following any
term of imprisonment. If the defendant violates any condition
of supervised release, the defendant could be imprisoned for up
to two (2) years (18 U.S.C. § 3559(a)(4); 18 U.S.C. §
3583(b)(2) and (e)(3); and U.S.S.G. § 5D1.2(a)(2).

In addition, the defendant understands that:

pursuant to U.S.S.G. § 5E1.1, the Court may order
him to pay restitution to the victims of the offense; and

pursuant to 18 U.S.C. § 3013(a)(2)(A), the Court is required
to order the defendant to pay a $100.00 special assessment upon
conviction for the charged crime.

SENTENCING GUIDELINES

The defendant understands that the Sentencing Guidelines are advisory,
not mandatory, but that the Court must consider the Guidelines in
effect on the day the offense was committed, along with the other
factors set forth in 18 U.S.C. § 3553(a), in determining and
imposing sentence. The defendant understands that the Guidelines determinations
will be made by the Court by a preponderance of the evidence standard.
The defendant understands that although the Court is not ultimately
bound to impose a sentence within the applicable Guidelines range,
its sentence must be reasonable based upon consideration of all relevant
sentencing factors set forth in 18 U.S.C. § 3553(a). Pursuant
to U.S.S.G. §1B1.8, the United States agrees that self-incriminating
information that the defendant provides to the United States pursuant
to this Plea Agreement will not be used to increase the volume of
affected commerce attributable to the defendant or in determining
the defendant's applicable Guidelines range, except to the extent
provided in U.S.S.G. §1B1.8(b).

SENTENCING AGREEMENT

Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and
the defendant agree that the appropriate disposition of this case
is, and agree to recommend jointly that the Court impose, a sentence
within the applicable Guidelines range requiring the defendant to
pay to the United States a criminal fine of $5,000.00, payable at
sentencing; and a jail term of zero (0) to six (6) months, ("the recommended
sentence"). The parties agree that there exists no aggravating or
mitigating circumstance of a kind, or to a degree, not adequately
taken into consideration by the U.S. Sentencing Commission in formulating
the Sentencing Guidelines justifying a departure pursuant to U.S.S.G.
§5K2.0. The parties agree not to seek or support any sentence
outside of the Guidelines range nor any Guidelines adjustment for
any reason that is not set forth in this Plea Agreement. The parties
further agree that the recommended sentence set forth in this Plea
Agreement is reasonable.

The United States and the defendant agree that the recommended
sentence is within the range prescribed for this offense through
application of the Sentencing Guidelines as follows:

The base level offense is six (6) (U.S.S.G. 2B1.1(a)(2));

defendant's acceptance of responsibility for his offense
provides for a decrease of two (2) levels, resulting in an
adjusted offense level of four (4) (U.S.S.G. 3E1.1(a)); and

the defendant has a criminal history category level of
one, so the applicable Guidelines sentence is 0 - 6 months
imprisonment, with eligibility for probation.

The criminal fine of $5,000 has been calculated pursuant to
U.S.S.G. 5E.1.2 (c), which provides for a fine of $250 to $5,000.

The defendant understands that the Court will order him to
pay a $100 special assessment pursuant to 18 U.S.C. § 3013(a)(2)(A)
in addition to any fine imposed.

The defendant is not ordered to make restitution because it
would entail determining complex fact issues related to the amount
of the victim's losses that would complicate and prolong the sentencing
process to a degree that the need for restitution would be outweighed
by the burden on the sentencing process pursuant to U.S.S.G. 5E1.1(b)(2)(B).

Subject to the ongoing, full, and truthful cooperation of the defendant
described in Paragraph 11 of this Plea Agreement, and before sentencing
in the case, the United States will fully advise the Court and the
Probation Office of the fact, manner, and extent of the defendant's
cooperation with the United States' investigation and prosecutions,
all material facts relating to the defendant's involvement in the
charged offense, and all other relevant conduct. To enable the Court
to have the benefit of all relevant sentencing information, the United
States may request, and the defendant will not oppose, that sentencing
be postponed until his cooperation is complete.

The United States and the defendant understand that the Court retains
complete discretion to accept or reject the recommended sentence provided
for in Paragraph 8 of this Plea Agreement.

If the Court does not accept the recommended sentence, the
United States and the defendant agree that this Plea Agreement,
except for Paragraph 10(b) below, shall be rendered void. Neither
party may withdraw from this Plea Agreement, however, based on
whether probation is grantedorthe
type or location of the correctional facility to which the defendant
is assigned to serve his sentence, if any.

If the Court does not accept the recommended sentence, the
defendant will be free to withdraw his guilty plea (Fed. R. Crim.
P. 11(c)(5) and (d)). If the defendant withdraws his plea of guilty,
this Plea Agreement, the guilty plea, and any statement made in
the course of any proceedings under Fed. R. Crim. P. 11 regarding
the guilty plea or this Plea Agreement or made in the course of
plea discussions with an attorney for the government shall not
be admissible against the defendant in any criminal or civil proceeding,
except as otherwise provided in Fed. R. Evid. 410. In addition,
the defendant agrees that, if he withdraws his guilty plea pursuant
to this subparagraph of the Plea Agreement, the statute of limitations
period for any Relevant Offense, as defined in Paragraph 12 below,
will be tolled for the period between the date of the signing
of the Plea Agreement and the date the defendant withdrew his
guilty plea or for a period of sixty (60) days after the date
of the signing of the Plea Agreement, whichever period is greater.

DEFENDANT'S COOPERATION

The defendant will cooperate fully and truthfully with the United
States in the prosecution of this case, the conduct of the current
federal investigation of violations of federal antitrust and related
criminal laws involving the rigging of bids solicited by or the making
of false statements to the United States in connection with construction,
renovation and heating/ventilation/air conditioning projects at various
federal buildings, military bases and other facilities, any other
federal investigation resulting therefrom, and any litigation or other
proceedings arising or resulting from any such investigation to which
the United States is a party ("Federal Proceeding"). The ongoing,
full, and truthful cooperation of the defendant shall include, but
not be limited to:

producing all non-privileged documents, including claimed personal
documents, and other materials, in the possession, custody, or
control of the defendant, requested by attorneys and agents of
the United States;

making himself available for interviews, not at the expense
of the United States, upon the request of attorneys and agents
of the United States;

responding fully and truthfully to all inquiries of the United
States in connection with any Federal Proceeding, without falsely
implicating any person or intentionally withholding any information,
subject to the penalties of making false statements (18 U.S.C.
§ 1001) and obstruction of justice (18 U.S.C. § 1503);

otherwise voluntarily providing the United States with any
non-privileged material or information, not requested in (a) -
(c) of this paragraph, that he may have that is related to any
Federal Proceeding; and

when called upon to do so by the United States in connection
with any Federal Proceeding, testifying in grand jury, trial,
and other judicial proceedings in the United States, fully, truthfully,
and under oath, subject to the penalties of perjury (18 U.S.C.
§ 1621), making false statements or declarations in grand
jury or court proceedings (18 U.S.C. § 1623), contempt (18
U.S.C. §§ 401 - 402), and obstruction of justice (18
U.S.C. § 1503).

GOVERNMENT'S AGREEMENT

Subject to the full, truthful, and continuing cooperation of the
defendant, as described in Paragraph 11 of this Plea Agreement, and
upon the Court's acceptance of the guilty plea called for by this
Plea Agreement and the imposition of the recommended sentence, the
United States will not bring further criminal charges against the
defendant for any act or offense committed before the date of this
Plea Agreement that was undertaken (a) in furtherance of an antitrust
conspiracy involving the rigging of bids solicited by the United States
in connection with construction, renovation and heating/ventilation/air
conditioning projects at various federal buildings, military bases
and other facilities and (b) in making any false, fictitious or fraudulent
statement or representation in connection with any bid solicited by
any department, bureau or agency of the United States or in connection
with any submission to the Small Business Administration (collectively,
"Relevant Offenses"). The nonprosecution terms of this paragraph do
not apply to civil matters of any kind, to any violation of the federal
tax or securities laws, or to any crime of violence.

REPRESENTATION BY COUNSEL

The defendant has reviewed all legal and factual aspects of this
case with his attorney and is fully satisfied with his attorney's
legal representation. The defendant has thoroughly reviewed this Plea
Agreement with his attorney and has received satisfactory explanations
from his attorney concerning each paragraph of this Plea Agreement
and alternatives available to the defendant other than entering into
this Plea Agreement. After conferring with his attorney and considering
all available alternatives, the defendant has made a knowing and voluntary
decision to enter into this Plea Agreement.

VOLUNTARY PLEA

The defendant's decision to enter into this Plea Agreement and
to tender a plea of guilty is freely and voluntarily made and is not
the result of force, threats, assurances, promises, or representations
other than the representations contained in this Plea Agreement. The
United States has made no promises or representations to the defendant
as to whether the Court will accept or reject the recommendations
contained within this Plea Agreement.

VIOLATION OF PLEA AGREEMENT

The defendant agrees that, should the United States determine in
good faith, during the period that any Federal Proceeding is pending,
that the defendant has failed to provide full and truthful cooperation,
as described in Paragraph 11 of this Plea Agreement, or has otherwise
violated any provision of this Plea Agreement, the United States will
notify the defendant or his counsel in writing by personal or overnight
delivery or facsimile transmission and may also notify his counsel
by telephone of its intention to void any of its obligations under
this Plea Agreement (except its obligations under this paragraph),
and the defendant shall be subject to prosecution for any federal
crime of which the United States has knowledge including, but not
limited to, the substantive offenses relating to the investigation
resulting in this Plea Agreement. The defendant may seek Court review
of any determination made by the United States under this Paragraph
to void any of its obligations under the Plea Agreement. The defendant
agrees that, in the event that the United States is released from
its obligations under this Plea Agreement and brings criminal charges
against the defendant for any Relevant Offense, the statute of limitations
period for such offense will be tolled for the period between the
date of the signing of this Plea Agreement and six (6) months after
the date the United States gave notice of its intent to void its obligations
under this Plea Agreement.

The defendant understands and agrees that in any further prosecution
of him resulting from the release of the United States from its obligations
under this Plea Agreement based on the defendant's violation of the
Plea Agreement, any documents, statements, information, testimony,
or evidence provided by him to attorneys or agents of the United States,
federal grand juries, or courts, and any leads derived therefrom,
may be used against him in any such further prosecution. In addition,
the defendant unconditionally waives his right to challenge the use
of such evidence in any such further prosecution, notwithstanding
the protections of Fed. R. Evid. 410.

ENTIRETY OF AGREEMENT

This Plea Agreement constitutes the entire agreement between the
United States and the defendant concerning the disposition of the
criminal charges in this case. This Plea Agreement cannot be modified
except in writing, signed by the United States and the defendant.

The undersigned attorneys for the United States have been authorized
by the Attorney General of the United States to enter this Plea Agreement
on behalf of the United States.

A facsimile signature shall be deemed an original signature for
the purpose of executing this Plea Agreement. Multiple signature pages
are authorized for the purpose of executing this Plea Agreement.